-Aspen's historic May 5, 2009 IRV election audited as single ballots-
5/5/09 Aspen CO held an instant runoff election (IRV) for mayor and 2 council members. Interpreted contents of each ballot, scanned by True Ballot, were publicly released. Open records requests for a CD of image scans were denied. Aspen has been sued to protect records from destruction and to allow inspection of the scanned ballot files. A Court of Appeals ruling holds that unidentifiable ballots are public records.

The Colorado constitution refers to a different combination of terms: "secrecy in voting" and anonymous ballots - and there is a big difference. Looking at the final paragraph of the Pitkin County press release below, one can see that the Pitkin County Clerk does understand this difference and is careful to use the correct terminology.

However, the Pitkin County Clerk also seems to have concluded that transparency and anonymity are essentially in conflict and that both may not be achievable simultaneously. She has also used an oxymoron when she writes "anonymity of their ballots" - since once rendered anonymous, personalization of the ballot does not exist. So I find myself glaring at the irony of the use of the word "their" next to the word "ballots".

Here is a better wording I would prefer to see used in place of what is in the release: "I will work to assure that each Pitkin County individual has the ability to exercise his or her right to vote with confidence in the anonymity of ballots cast in this county and the untraceability of individual votes on those ballots."

The two concepts that are irrevocably in conflict are "secrecy" and "transparency" of ballots.

On the other hand, anonymity and transparency of ballots are perfect compliments to each other. The author of the press release may have failed to realize this. Both the press release and the article contain no reference to the benefits to be obtained from transparency of ballots. I hope the Pitkin County Clerk and Recorder will come to understand these important principles and will then somehow help convey her understanding to fellow clerks. I have highlighted the paragraph in the text shown below that was not reflected in the Aspen Times article. I continue to have a reservations about the conclusion that the judicial process produced "partial answers on an ad-hoc basis."

The Appeals Court decision, far from ad-hoc, allows the clerks to have discretion to withhold identifiable ballots. Judge Gonzales (12th JD) in the Gessler v Myers case in August also wrote in separate but consistent opinion,“ An election record, including a voted ballot, may be disclosed as long as the identity of the voter is not disclosed."

This interpretation is not inconsistent with Colo. Const. art. VII, § 8 that states that a ballot cannot “be

marked in any way whereby the ballot can be identified as the ballot of the person casting it.”

Clerk Vos Caudill seems to see complexity where others see relative clarity and simplicity. If Vos Caudill can identify the voter from looking at the ballot, then she shouldn’t disclose the ballot in an identifiable form. But if voter markings explain that ability to identify, she should be considering referring those ballots to law enforcement. Markings rendering a ballot identifiable are illegal.

Sometimes the way ballots are printed focuses on a very small number of eligible voters in a split precinct. Low turnout can create the ability to identify the voter associated with a unique ballot style. That problem is easily predicted and such a unique ballot can be withheld from public inspection until the small-split-precinct matter is addressed systematically. If an election official cannot identify the voter from looking at the ballot, the ballot should be eligible for inspection by the public.

Aspen, Colorado – Pitkin County Clerk and Recorder Janice K. Vos Caudill announced today that she will grant Marilyn Marks’ request under the Colorado Open Records Act (“CORA”) to inspect 100 anonymous voted ballots and provide copies of 25 voted ballots cast in the 2011 Coordinated Election. The inspection will occur the week of November 21.

The 100 anonymous ballots will be selected from 605 ballots cast on AccuVote-OS machine, serial number 836336. The same machine was randomly selected by the Secretary of State to undergo the statutory post-election audit. Under the Election Code, the Secretary of State randomly selects specific pieces of electronic voting equipment used by each county in an election, and boards of election judges then manually verify that the specified machine accurately tabulated the votes. Pitkin County’s 2011 post-election audit was conducted on November 10th, and the results of the audit may be viewed on the Colorado Secretary of State’s website at www.sos.state.co.us (under elections/voting systems program/post-election audit). Due to time constraints and the volume of work in the Clerk and Recorder’s office, Marilyn Marks offered to reduce the scope of her CORA request from all of the 605 ballots that were the subject of the post-election audit to 100 of those ballots.

The Clerk and Recorder made this decision to review the ballots based on the September 29, 2011 Colorado Court of Appeals opinion in Marks v. Koch, Secretary of State Election Alert 2011-04, and after consulting with Pitkin County Attorney John Ely.

Unlike municipalities, counties are administrative subdivisions of the state, and county clerks are required to implement and enforce a variety of state laws, including judicial opinions, Colorado Revised Statute Title I, Election Rules, orders and directives promulgated by the Secretary of State.

“State election laws and rules are very complicated,” Vos Caudill said. “County clerks understand that breaking the seals that secure voted ballots and releasing voted ballots for public inspection may have unintended consequences that could cause harm. The proliferation of election-related data, advances in database technology, and the interpretation of CORA to encompass voted ballots may unwittingly combine to produce public harm and injury by enabling the identification of a voted ballot with a particular voter. It is imperative these risks be addressed in a thoughtful and systematic review of all applicable laws and regulations by the General Assembly, the Election Division of the Department of State, county clerks and election personnel, and community members. The people of Colorado and clerks deserve clarity versus litigation that, at best, provides partial answers on an ad hoc basis,” Vos Caudill said.

“My foremost concern as Clerk and Recorder for Pitkin County is to continue our proud legacy of honest, fair and verifiable elections in a manner that is both transparent and ensures the anonymity of ballots cast by Pitkin County electors. However, achieving these disparate but extremely important objectives is becoming increasingly difficult, and may be completely impractical due to the unique facts and circumstances of any given future election. Until there is clarity in law and rule, I will work to assure that each Pitkin County individual has the ability to exercise their right to vote with confidence in the anonymity of their ballots and the secrecy of their individual votes,” Vos Caudill said.